Gone: New Zealand yacht inspections

Jan 1, 2003

Voyagers worldwide breathed a sigh of relief as New Zealand's highest court declared departure inspections of foreign yachts to be unlawful. The court held that the effect and purpose of the actions of New Zealand's director of maritime safety, Russell Kilvington, was to regulate foreign yachts on the high seas, which goes against 300 years of international maritime law and the principles of freedom of the high seas and exclusive flag-state jurisdiction. New Zealand has had pre-departure inspections for its own pleasure yachts since 1952, but in January 1995 the director imposed the measure upon departing foreign-flag yachts. The principal reason advanced was to ensure that foreign yachts complied with New Zealand's safety requirements and were equipped with EPIRBs and radios to aid rescue in New Zealand's search and rescue area. A very strong protest, which cited the protection of international law, from about 400 foreign yachts spending the summer in New Zealand went unheeded. Particularly objectionable was that the voyagers had not been given advanced warning of the director's proposals on or before arrival, but then could not leave without complying with it. Voyager representatives offered to assist the director with his safety concerns, but could only oppose an illegal scheme that had worldwide implications. All voyagers recognize that their vessels are required to comply with the requirements of their flag state at all times, but the concern was that inspections and different safety requirements would be set in every country visited, making world voyaging a nightmare of conflicting regulations, inspections, and inspection costs. A boycott of New Zealand followed, which has resulted in a reduction of visiting voyagers by about 30%. A number of voyagers sailed out in protest without complying with the inspection requirement, which meant that they had no clearance certificate for their next port. However, Australia and New Caledonia raised no difficulties, knowing of the dispute. One of these protesters was U.S. circumnavigator Bill Sellers on his 34 William Atkin cutter Nimbus, which was registered in Malta. His protest letter written on departure in May 1995 claimed the provision was an attempt to restrict free and private movement on the open sea. Two civil actions were commenced against the director of maritime safety, but when Sellers returned in 1996 he was prosecuted for failing to go through the inspection process, and the legal attention turned to his case. Canadian voyaging barrister Michael Donnan undertook the huge amount of legal research necessary, and, at the third attempt, in New Zealand's highest court, the voyagers' argument was finally upheld. Sir Kenneth Keith, giving the judgment of the Court of Appeal, said in legal terms the objection was based on the principle of the freedom of the high seas. That freedom, including the freedom of navigation, is one of the best-established principles of international law. An essential feature of the freedom is that the flag state of the ship has exclusive jurisdiction over the ship when it is on the high seas. The court decided that the intention and effect of the director's actions (although the inspection was a pre-departure condition in port) was to seek to impose his requirements on foreign yachts on the high seas, which was a breach of international law. The Court implied that the result may have been different if there had been any international standards for pleasure craft that the director had then applied, but pleasure craft not engaged in trade have always been excluded from the international standards conventions. Voyagers affected are invited to write: Box 695, Kerikeri, New Zealand; e-mail: cruisinglifestyle@xtra.co.nz; or fax agency: NZ+94078608 A full copy of the court judgment and further comment on the matter is available on http:\\www.pangolin.co.nz.